Form No: H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
C.R.No.1082 of 2016
JUDGMENT
Muhammad Shafiq Khan Vs. Mohammad Waryam

Date of Hearing 21.09.2021

Petitioner by: M/s. Muhammad Muzammil Qureshi & Anwaar
Hussain Janjua, Advocates
Respondent by: Mr. Nasir Mehmood Chaudhry, Advocate

Ch. Muhammad Masood Jahangir, J.- The subject 13Kanals 7Marlas via oral

sale mutation No.1620 of 24.09.2010 (Exh.P3) was sold out to the

petitioner/vendee. This transaction was pirated by the respondent/pre-

emptor by filing suit for possession through pre-emption claiming his

superior right being shafi shareek, shafi khaleet & shafi jar. The pre-emptor

further asserted that sale was kept secret, which for the first time, was

disclosed to him at his residence before Muhammad Nawaz (PW2) and Gulzar

Hussain (PW3) at 5.00 p.m. on 03.11.2010 by Ahmad Bakhsh (PW1) and that

pronouncement of Talb-e-Muwathibat was promptly made in said majlis. The

pre-emptor additionally pleaded that on 04.11.2010 notice Talb-i-Ishhad

attested by true witnesses (names were not disclosed) was dispatched/sent to the

petitioner/vendee through registered post A.D. Significant to note that via

contents of plaint, nowhere revealed that either said registered dak was

delivered to the vendee or he refused to receive the same. The suit obviously

was contested by the latter by filing written statement while asserting that

transaction of sale from its inception was in the knowledge of the pre-emptor,

however further facts with regard to alleged preferential right of pre-emption

or that due talbs performed, were simply denied. The learned Trial Court

facing with divergent pleadings of the parties settled issues enabling them to

lead evidence in pros & cons and as a result of its appreciation, the suit was
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decreed by learned Trial Court via decision of 19.06.2015, which further was

upheld by learned Appellate Court below through judgment dated 21.12.2015,

thus this petition was filed to check legality & validity thereof.

2. Mr. Muhammad Muzammil Qureshi, Advocate, learned counsel for

petitioner focused his arguments solely to the effect that neither second talb

was pleaded nor proved per requirement of law, that testimony of Postman

(PW5) was not reliable as he made inconsistent statement, and that original

Acknowledgment Due Card along with Report of the Postman was not

brought on suit record to confirm that either notice Talb-i-Ishhad delivered or

that the vendee refused to receive it, besides that no prayer so far made to lead

secondary evidence to that effect. In response, Mr. Nasir Mehmood Chaudhry,

learned counsel for respondent/pre-emptor while supporting impugned

concurrent decisions of the fora below, emphasized with great vehemence that

in exercise of revisional jurisdiction those cannot be brushed aside.

3. Arguments heard, record perused.

4. As learned counsel for the petitioner has confined his arguments only

to the extent that second demand was not fulfilled in accordance with law,

thus this Court is also going to restrict itself to that extent. Adverting to

features of the case in hand, per para-4 of the plaint, stance of the pre-emptor

being most relevant, in verbatim is reproduced hereunder:-

‫ دصتقی دشہ اصدق وگااہن ربوےئ ڈاک ررٹسجی‬20-00-0202 ‫ہی ہک نم دمیع ےن ونسٹ بلط االاہشد رحمرہ ومرہخ‬
‫ وکاراسلرکدای۔وج دماعہیلع ےنابووجد ونسٹارایض دبتسدمیعلقتنم‬20-00-0202‫ ومرہخ‬002 ‫ہعم وایسپ ردیسربمن‬
‫ہنیکےہ۔اسےیلبلطوصختمیکرضورتالقحوہیئ۔‬

Nonetheless, according to basic law of pre-emption duly interpreted by

superior Courts, sine qua non for the pre-emptor to prove by leading solid and

consistent evidence that notice Talb-i-Ishhad was not only dispatched through

registered post A.D., rather that it was acted upon the vendee as well or that

he refused to receive it. As noted above, through pleadings some essential

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facts were kept in dark, however when evidence of the pre-emptor (PW7) was

considered, he in his statement-in-chief to that effect only deposed that:-

‫الصونسٹافلہفںیمدنبرکےکررٹسجیرکوادای۔درتسہتپاھکلاھتاوروایسپردیسیھبوھکلایئ۔ررٹسجیرکوادیسجیک‬
‫ےہ۔‬Exh:P2 ‫ردیس‬

Thus pre-emptor again prevented himself to expose that either after due

delivery of notice Talb-i-Ishhad, Acknowledgment Due Card was returned to

him or on refusal to accept the same, Registered Post Envelop along with rider

came back. Anyhow, last source for the pre-emptor to prove the above noted

chain of facts, was the concerned Postman, who being PW5 in his statement-

in-chief (available at page 64) though categorically claimed to have personally

delivered registered post to the petitioner/vendee, yet while deposing in his

cross-examination (available at page 63) as under:-

‫ںیمہناتباتکسوہںہکںیمےنررٹسجیافلہفسکوکووصلرکواای۔‬

and that:-

‫ےھجم اید ہن ےہ ہک ںیم ےن سک وفل افلہف ررٹسجی ووصل رکوایئ پ ےا ر س ر ڈررڈ ہن ےہ ۔ ںیم ہن اتب اتکس وہں ہک دط‬
‫رکواےئےھتہکںیہن۔‬

doubted whatever worded in the statement-in-chief. See Mst. Zaitoon Begum

Vs. Nazar Hussain and another (NLR 2014 Civil (SC) 445), wherein it was held

that a witness, who is not found to be consistent in his testimony and has

changed his/her stance, cannot be relied upon. The relevant extract thereof,

for ready reference, is reproduced here:-

***It is well embedded principle of law that “one who makes

statements, mutually inconsistent statements in the same matter, at
two occasions, with regard to the same issue, is not entitled to be
listened to” because the credibility of the person, giving testimony on
oath, is shaken to a great extent, once she is found indulging in
jumping from one stance and catching on another stance, such
eventuality would give rise to strong presumption that under the garb
of protection given to illiterate lady, she is herself indulging in
misrepresentation and attempting to mislead the Court to reach at a
patently wrong conclusion.***
It further was drastic that despite Postman was summoned and his statement-

in-chief recorded, but Acknowledgment Due Card was not put/confronted to

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C.R.No.1082 of 2016

him. Had the registered post been handed over to Postman for its delivery, he

was under obligation to make report on the A.D. Card that same was handed

over to the vendee. Non-tendering of A.D. Card during evidence of Postman

was a fatal drawback on the part of pre-emptor. So much so, through

statements of other witnesses or even via statement of counsel for the pre-

emptor the A.D. Card was never brought on suit record. Its withholding

compelled the Court to draw adverse inference that notice Talb-i-Ishhad was

not served upon the vendee.

5. The argument of learned counsel for the respondent/pre-emptor that

A.D. Card might have not been received back or that it was lost, thus for such

lapses could not be exhibited in evidence, is not acceptable. Had it been so, as

assumed or imagined by learned counsel, then the pre-emptor was under

obligation to have made the request for examination of secondary evidence. It

could be granted subject to proof that A.D. Card was destroyed or lost. In

absence thereof, the pre-emptor failed to fulfill the mandatory requirement of

law. The next submission of Mr. Nasir Mehmood Chaudhry, learned counsel

for the pre-emptor that petitioner/vendee never denied to have received the

notice Talb-i-Ishhad, and in such situation his client was not obliged to prove

the said fact, is ill founded. The vendee (DW1) in his cross-examination

(available at page 79) while deposing that:-

‫ہیطلغےہہکونسٹبلطااہشدےھجموموصلوہااھت‬

pertinently denied the receipt of such notice.

6. Mr. Nasir, learned counsel for the respondent/pre-emptor, while

relying upon the recent decision passed by august Supreme Court rendered in

case reported as Ghulam Murtaza Vs. Muhammad Rafique and others (2022

SCMR 1220) forcefully emphasized that when the postal receipt and the

registered envelop properly addressed containing the requisite notice were

duly made available on suit file, then this would amount to sufficient
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compliance of law, is not well founded. The referred case law has minutely

been gone through, wherein the postal receipt, registered envelop and

“especially” A.D. Card were duly exhibited, thus that being run on

distinguishable facts cannot be applied in this case. Moreover, each case is to

be decided per its own merit. Even otherwise, during course of hearing of

referred case the hon’ble Bench (comprising two members) might not be apprised to

the earlier decisions of the same Court like Muhammad Bashir and others Vs.

Abbas Ali Shah (2007 SCMR 1105), Dayam Khan and others Vs. Muslim Khan

(2015 SCMR 222) and Khan Afsar Vs. Afsar Khan and others (2015 SCMR 311)

passed by larger Benches consisting of three honourable members each,

wherein repeatedly held that the requirement of “sending notice in writing” is

followed by A.D. Card, which signifies that intention of law is not merely

dispatch of a formal notice on the part of pre-emptor conveying his/her

intention to pre-empt, but a notice must be served on the addressee is real

import of relevant provision of law. To better understand, para-11 of

Muhammad Bashir’s case (supra) being relevant is given below:-

11. The requirement of, "sending a notice in writing" is followed by a

rider i.e. "under registered cover acknowledgement due". This signifies
that the intention of law is not merely a formal notice on the part of the
pre-emptor conveying his intention to pre-empt but a notice served on
the addressee to apprise him about his intention to pre-empt. To say
that mere "sending of notice" is enough would make the expression
"acknowledgement due" redundant. The service of the addressee, as
prescribed in law therefore, is imperative. If the acknowledgement card
carries an endorsement of "refusal" or "not accepted", a presumption
of service would arise unless it is rebutted. The expression "sending
notice" came up for consideration in Thammiah, b. v. Election Officer
(1980) 1 Kant L.J. 19 and the Court held that it means, "that it should
reach the hands of the person to whom it has been given and the giving
is complete when it has been offered to a person but not accepted by it".

The apex Court, in this case while referring/discussing chain of authorities

came to the conclusion that “presumption of service” in terms of Article 129 of

Qanun-e-Shahadat, 1984 read with section 27 of the General Clauses Act does

not arise in pre-emption cases, if the addressee disowns the receipt of notice
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Talb-i-Ishhad. The hon’ble Supreme Court again in judgment reported as

Basharat Ali Khan Vs. Muhammad Akbar (2017 SCMR 309) held as under:-

***Indeed, the acknowledgement due card was not produced on record

by the respondent/preemptor nor was the postman, who may have
delivered the notice, called to the witness box. Consequently, according
to the pleadings and also the evidence on record, the respondent/pre-
emptor has not discharged his burden to prove the service of notice of
Talb-i-Ishhad as required under section 13(3) of the Act, 1991. The
respondent/pre-emptor thereby failed to satisfy his mandatory
obligation under the law. Such default is fatal for his pre-emption suit.

and in Mst. Bibi Fatima Vs. Muhammad Sarwar (2022 SCMR 870) while dealing

with almost identical situation concluded that:-

5. Heard, perused the record with the able assistance of learned counsel
for the parties. First we take matter of performance of Talb-e-Ishhad.
Plaintiff/respondent claims that he sent the notice of Talb-e-Ishhad
through registered post with acknowledgment due. The
appellant/defendant denied this fact in his written statement. There is
no cavil with the proposition that in terms of Article 129 of the
Qanun-e-Shahadat Order read with section 27 of the General Clauses
Act, a presumption of service does arise if a notice sent through
registered post with acknowledgement due is received back with the
endorsement of "refused" by the postal authorities but if the addressee
appears in Court and makes a statement on oath disowning receipt of
notice, the presumption under the afore-referred provision shall stand
rebutted and the onus is on the party which is relying on such an
endorsement to prove the same by producing the postman who made
the endorsement. Reference may be made to "Muhammad Bashir v.
Abbas Ali Shah" (2007 SCMR 1105), "Bashir Ahmed v. Ghulam
Rasool" (2011 SCMR 762), "Allah Ditta v. Muhammad Anar" (2013
SCMR 866), "Dayam Khan v. Muslim Khan" (2015 SCMR 222),
"Basharat Ali Khan v. Muhammad Akbar" (2017 SCMR
309),"Sultan v. Noor Asghar" (2020 SCMR 682). In these
circumstances, it was the duty of the plaintiff/respondent to prove not
only the issuance of notice of Talb-e-Ishhad in accordance with law
and sending of notice to the vendee/defendant through registered post,
acknowledgment due but also the service of notice upon
vendee/defendant or refusal thereof by producing the Postman and
acknowledgment receipt. Admittedly the plaintiff/respondent has not
produced the original postal envelope if returned to him on refusal to
receive the same by vendee/defendant neither the receipt of
acknowledgment of delivery of notice produced nor the postman. In
this way the plaintiff miserably failed to prove the performance of Talb-
e-Ishhad in accordance with law.

Thus it can safely be concluded that the respondent/pre-emptor failed to

prove due performance of second demand under the law, therefore findings of

both the Courts on issue No.2 are reversed and the same is answered in

negative.
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C.R.No.1082 of 2016

7. As far as contention of learned counsel for respondent/pre-emptor that

concurrent finding of the Courts below cannot be disturbed by this Court

while exercising revisional jurisdiction provided under section 115 CPC is not

tenable as both the judgments & decrees having been found to be result of

misreading/non-reading of evidence as well as non-adherence to the law laid

down in this behalf by the superior Courts are not sustainable in the eye of

law. It is correct that normally this Court does not interfere in the concurrent

findings of fact recorded by the Courts below, but here the impugned decrees

being classic example of wrong exercise of jurisdiction and clearly tainted with

misreading & non-reading of evidence besides patent violation of the law

floating on its surface cannot be sustained. On being faced with such situation,

this Court cannot shut its eyes and is always under obligation to rectify the

error by interference in such like illegal findings. Reliance can be placed upon

the judgments reported as Ghulam Muhammad and 3 others Vs. Ghulam Ali (2004

SCMR 1001) Mushtari Khan vs. Jehangir Khan (2006 SCMR 1238), Muhammad

Nawaz@Nawaza Vs. Member Judicial BoR & others (2014 SCMR 914) and Nazim-

ud-Din & others Vs. Sheikh Zia-ul-Qamar & others (2016 SCMR 24).

8. For the foregoing reasons this petition succeeds, which is allowed,

impugned judgments of the two Courts below are hereby set aside and suit of

the respondent/pre-emptor is dismissed leaving the parties to bear their own

costs.

(Ch. Muhammad Masood Jahangir)

Judge

Approved for reporting.

Judge

Amjad